It’s inevitable: if you’re writing non-fiction, at some point you need to consider the law. How much you need to consider it varies widely depending on your genre and the scope of your manuscript – but there are some things to keep in mind. And it matters. The last thing you want is to spend more than you'll ever make on your book paying lawyers and court fees and possibly the people you've wronged by infringing copyrights and fair use.
Caveat: I am NOT an attorney; I'm only trying to point out some possible legal issues surrounding your non-fiction book. In fact, this edition will be a bit shorter, as I’m going to defer to the experts I will be linking to instead. However, I think it’s good to have the links and resources handily available...so consider this a public service! Also note that I’m only dealing with books published in the United States; each country has its own copyright and fair use guidelines.
To Tell the Truth is an 18-week mini-series exploring the practical side of non-fiction writing and publishing. The series outline is located here, and previous episodes may be found here. To Tell the Truth is published Monday evenings and is crossed posted at MélangePress.
For more writing and book diaries, visit Write On! on Thursdays, Bookflurries and What Are You Reading on Wednesdays, and Books by Kossacks. Also, don't miss the new front page Book Club, hosted by Mark Sumner.
Before we begin
First, if you have any questions at all about intellectual property issues as it pertains to your book, contact an attorney with expertise in copyrights, intellectual property, or entertainment.
Second, the main law we are speaking about here is Title 17 of the United States Code - the US Copyright Act of 2009 (which is largely an amended version of the Act of 1976, now including laws surrounding internet, software, digital performance, home viewing, satellites, piracy, etc.). You can find the entire law here.
So... what is a copyright?
As defined by the US Copyright Office, "Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works." Only the author of the work can claim copyright; but note this exception: if you are hired to create a work, the EMPLOYER, not the employee, is the holder of the copyright. I saw this in action in the most recent book I published, Pooled Trust Options. The author was hired by the National PLAN Alliance to write the book. While her name is listed as the author, the National PLAN Alliance holds the copyright.
Securing a copyright does notrequire registering at the copyright office – but there are advantages (such as a record in the Copyright Office). Also – publication itself is not THE key to securing copyright, but it is important. And for goodness’ sake, please do continue to use the © symbol on works you publish online or in print.
There are also guidelines for derivative works – and this can get you in trouble. Remember the fracas around Shepard Fairey’s HOPE poster? This was about his poster being a derivative work; how different is different? If you have ANY sense that your work is derivative, contact a copyright attorney.
For more, please read the US Copyright Basics circular.
Now talk to me about Fair Use
Simply put, fair use allows you to use small portions of copyrighted material without requiring permission. The law (section 107 of the Copyright Act of 1976) is intentionally vague – which means, again, you have to be quite careful not to quote too much but not be overanxious about it either. There are guidelines on ‘balance’ – what percentage of a work is quoted, how much more of the work is yours. It is ultimately, however, a case of "we know an infringement when we see it." In Recounting Minnesota, WineRev quoted a lot from a lot of sources – but they were rarely more than 5% of the original work, were properly cited, and the bulk of the total work was still WineRev’s. This was, according to our attorney, fair use. (Note: we did check with Kos, since the work was originally published at DailyKos, but his rule is that diarists own their own writing. Yay! We also checked with other sources we quoted heavily from – all agreed with our attorney that it was within fair use.)
Obviously, if your non-fiction book is a first-hand account, you may have less cause to quote from anyone else. But chances are, at some point, you will be citing sources and quoting them.
What you choose to do is largely a decision you make with your editor, publisher, and associated attorneys. If there is any question about violating fair use, pursue some legal advice. Meanwhile, check out the fine guidelines at the American Library Association and Stanford University.
Why else might I need a lawyer?
Besides getting the content past the legal eagles, you will want an attorney for your publishing contract, to make sure your rights are protected. Depending on the publisher and the model you follow, you will have various levels of rights to your work. A traditional publisher like Doubleday will own the right to publish your work. A self publisher like CreateSpace gives you the rights to your own work. Simply put, if you own the rights, you are licensing a publisher to design/print/promote/distribute your work, only as you desire. If your publisher owns the rights, they are paying you (in royalties) for the ability to do whatever they want with your work. (We’ll talk more about the various publishing models next week.)
You will also want to make sure, when you sign a contract, to know how the financial side works. Lawyers are very good at that...
Ultimately...If you have ANY questions about legalities of anything surrounding your book, consult an attorney.
Next week, a review of various publishing models – the pros and cons.
Cheers!